Copyright, Invented To Combat Commercial Abuse, Has Become A Means Of Commercial Abuse

from the say-that-again dept

This post is from Jan Velterop, a long-time science publisher, who is one of earliest proponents of "open access" publishing. The following is actually a message he posted to an open access mailing list, which Mike Taylor republished. We asked if we, too, could republish it, and Velterop told us (as we tell people who ask us) that the work should be considered in the public domain, and to do what we want with it.

I've been following this discussion with increasing bemusement. Frankly, it's getting ridiculous, at least in my humble opinion. A discussion such as this one about licensing and copyright only serves to demonstrate that copyright, once conceived as a way to stimulate and enable science and the arts, has degenerated into a way to frustrate, derange and debilitate knowledge exchange.

I'm not the first one to point out that absolutely anything, under any copyright license or none, could be abused for evil purposes or, in more mild circumstances, lead to misunderstandings and accidental abuse. I agree with all those who said it.

The issue here is what science and scientific results stand for. Their purpose is emphatically not "to be copyrightable items." Copyright, invented to combat commercial abuse, has become a means of commercial abuse. The purpose of science and scientific results is to enrich the world's knowledge. Any commercial advantage – appropriate for industrially funded research – can be had by 1) keeping results secret (i.e. not publishing them), or 2) getting a patent. Science, particularly modern science, is nothing without a liberal exchange of ideas and information.

Ideally, scientific publications are not copyrightable at all, and community standards take care of proper acknowledgement. We don't live in an ideal world, so we have to get as close as we can to that ideal, and that is by ameliorating the insidious pernicious effects of copyright with CC-Zero and CC-BY licences.

The existence of the NC rider or stipulation for CC licences is unfortunate and quite damaging. Mainly because of the vagueness and ambiguity of what "commercial use" means. Ideas in published articles can be freely used for commercial purposes of any kind, as ideas are not copyrightable. Only "the way the ideas have been formulated" is covered by copyright, and thus by the NC clause in copyright licenses. In my interpretation, that means that most usage of published material that is not a straightforward selling of text or images can be freely done. But that's my interpretation. And that's exactly where it rubs, because all the NC clause does is introduce hypothetical difficulties and liabilities. As a result of which, NC practically means: "stay away from using this material, because you never know with all those predatory legal eagles around." In other words, it's virtually useless for modern, sophisticated scientific knowledge discovery, which doesn't just consist of reading papers any longer, but increasingly relies on the ability to machine-process large amounts of relevant information, as human ocular reading of even a fraction of the information is not possible anymore. At least not in most fast-moving areas of the sciences. Read this article, or similar ones, if you want to be convinced: "On the impossibility of being expert" BMJ 2010; 341 doi: http://dx.doi.org/10.1136/bmj.c6815 (Published 14 December 2010 – unfortunately behind a paywall).

The taxpayer angle ("must be open because the taxpayer paid for it"), leading to Kent Andersonian notions of knowledge protectionism ("results of research paid by US taxpayers should not be available to non-US citizens unless they pay for it"), is a most unfortunate, visceral and primitive reaction and a complete red herring. For many reasons, not least because the taxpayer, or vicariously the taxman, isn't the party that pockets any money paid for paywalled information. Besides, how far do you go? Americans not being allowed to stay alive due to a cure that was developed with public money in Switzerland unless they pay through the nose for it to the Swiss tax authorities? The "as-long-as-I-am-well-the-rest-of-you-can-go-to-hell" personality disorder. The whole idea is so against the ethos of science that those even thinking in that direction must be taken to be utterly and entirely unsuitable to any role in the scientific community.

Access control and restriction via copyright was at best a necessary evil in the print era; the "necessary," though, has disappeared in the web environment.

Reader Comments

Any commercial advantage – appropriate for industrially funded research – can be had by 1) keeping results secret (i.e. not publishing them), or 2) getting a patent. Science, particularly modern science, is nothing without a liberal exchange of ideas and information.

That the patent system is completely broken is another fact altogether even if it does not undermine his argument. Copyright has to be narrowed down and limited.

Re:

Actually 1) is used all too often if there is a chance of research getting valuable in terms of a new product.2) is expensive and doesn't exclude research. Since knowledge is power, they would want to add a non-compete to the standard restrictions for anyone researching on it and probably even more discretionary measures to avoid getting competition (Patents are often taken years before a product is ready for the market. Because many of the fields have some competition it could be a fatal mistake to train a student ending up in a competing company!).

The real problem is in the surface between university and the rest of the world. I have seen several pHds quitting midway through their doctorate to create their own company or join an existing to monetize what they have learned. I have seen professors as private persons take patents on ideas. I have met loads of private companies poaching universities to headhunt the brightest students before they can start a pHd...

There are huge difficulties in the surface area between publisher and university personel at one border.There are huge difficulties in the surface area between private company and university personel at another border.

Copyright doesn't work well as a medium between universities and publishers. Patents doesn't work well in private companies interaction with universities.

Oh, this is boilerplate! Just drop in ANY system or invention:

Television, "once conceived as a way to stimulate and enable science and the arts, has degenerated into a way to frustrate, derange and debilitate knowledge exchange."

What's needed is to take power away from known bad actors, push back The Rich and corporations in this as in all other areas.If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! -- But don't at same time empower today's mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain. (115 of 195)Mike frequently runs items on "copyright abuse" intended to STIFLE expression knowing full well that his fanboys then consider all copyright bad and use those bad acts to justify their own STEALING of content. As Mike never runs items condemning STEALING, it's difficult to see how he "supports copyright". -- Mike sets up a false alternative: in fact, BOTH STIFLING AND STEALING ARE BAD. (151 of 195)

Re: Re: Oh, this is boilerplate! Just drop in ANY system or invention:

Re: Re: Oh, this is boilerplate! Just drop in ANY system or invention:

With respect to the US (where the entities you described reside):

"The clause actually confers two distinct powers: the power to secure for limited times to authors the exclusive right to their writings is the basis for U.S. copyright law, and the power to secure for limited times to inventors the exclusive rights to their discoveries is the basis for U.S. patent law. Because the clause contains no language under which Congress may protect trademarks, those are instead protected under the Commerce Clause. Some terms in the clause are used in archaic meanings, potentially confusing modern readers. For example, "useful Arts" does not refer to artistic endeavors, but rather to the work of artisans, people skilled in a manufacturing craft; "Sciences" refers not only to fields of modern scientific inquiry but rather to all knowledge." (via -> http://en.wikipedia.org/wiki/Copyright_Clause ^2 Ochoa, Tyler T. (2007). "Chapter 7: Copyright Duration: Theories and Practice". In Yu, Peter K. Intellectual Property and Information Wealth: Copyright and related rights. Greenwood Publishing Group. p. 133. ISBN 9780275988838. OCLC 71427267)

Under this definition I do believe you are correct, that frivolous entertainment, which is the predominant product 'protected' by the aforementioned groups, is not even covered. In that era the closest analogs are probably plays and museum pieces.

In both of those cases the natural protections of brand recognition and limiting the display of the work are all that was offered. Even in that era good ideas flowed freely in to new expressions, keeping culture vibrant and relevant.

It should also be noted that the commercial viability of methods and materials would be longer in this era due to the speed of communication and travel. As the globe has shrunk in effective vastness I argue that limited exclusivity period should be lessened, not raised as it has been, as the opportunity to gain brand recognition and develop further improvements requires less time and energy. (that the trade should require filings for said protections to be in descriptions useful to those skilled in that art/science is yet another issue)

Legislative purpose

Does a copyright owner even have the exclusive right to restrict commercial use? Any attempt to restrict commercial use must be done by a restrictive covenant when granting permissions, but would such a clause in a contract, made under state law, be considered censorship, be against public policy, and be preempted by federal copyright law which allows fair commercial use?

Consider the following, which only applies to libraries, not the public:

Reproduction of Copyrighted Works by Educators and Librarians

Senate Report: Discussion of Libraries and Archives in Profit-Making Institutions

The limitation of section 108 to reproduction and distribution by libraries and archives “without any purpose of direct or indirect commercial advantage” is intended to preclude a library or archives in a profit-making organization from providing photocopies of copyrighted materials to employees engaged in furtherance of the organization’s commercial enterprise, unless such copying qualifies as a fair use, or the organization has obtained the necessary copyright licenses.

not only that, in a lot of cases, it is used for nothing but that! the copyright holder fails miserably to make money from whatever the copyright is on, so rather than doing something else, something new that would perhaps give him an income, out come the law suits! why do you think that the entertainment industries refuse to adapt to the digital age? it sure as hell isn't because they cant! they simply dont want to! while they have an easy money spinner in court actions, particularly against big players, forced to pay out an absolute fortune, with the almost unending backing of courts that are 'persuaded' to lean in the industries direction and politician friends who do everything possible that the industries ask for, why would they?

Copyright of facts

I don't see how software and science can be copyrighted. These are facts. Logic -- If... then....

Compare to case law:

Copyright does not protect facts. "The wording is unimportant when descriptions are merely the barest possible statements of historical facts, and they could hardly be used at all without rather closely approximating the original wording." (Kane vs. Pennsylvania Broadcasting Co.)

Re:

Copyright has become the world wide equivalent of prohibition. It has set many citizens against their governments, and is giving a certain notoriety and popularity to people who help others break the law.

Techdirt kids (or just Mike hisself, we can't tell) censoring again.

Not that I care: illlustrates the tiny little minds here at Techdirt can't stand dissent; it's just that this time was trying out Windows crap and happened to notice.

Yet they can't keep from commenting at me.

Anyhoo, here repeated is what the kids can't bear:This comment has been flagged by the community. Click here to show it

identiconout_of_the_blue, Feb 4th, 2014 @ 9:24am

Oh, this is boilerplate! Just drop in ANY system or invention:Television, "once conceived as a way to stimulate and enable science and the arts, has degenerated into a way to frustrate, derange and debilitate knowledge exchange."

What's needed is to take power away from known bad actors, push back The Rich and corporations in this as in all other areas.If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! -- But don't at same time empower today's mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain. (115 of 195)Mike frequently runs items on "copyright abuse" intended to STIFLE expression knowing full well that his fanboys then consider all copyright bad and use those bad acts to justify their own STEALING of content. As Mike never runs items condemning STEALING, it's difficult to see how he "supports copyright". -- Mike sets up a false alternative: in fact, BOTH STIFLING AND STEALING ARE BAD. (151 of 195)

The proof is always in the actions one takes

Beware of people who claim to stand for reason, because being a person of reason is a bit like being an artist. You aren't one until someone else says you're one, and when you start proclaiming that you're one, that's just a big red flag saying you have no idea what it means to be one.

Shut up, Blue. It's not censorship if it takes one click to show it.It's all the censoring you can do, so it's censoring.

Now, I do appreciate YOU making it clear that I should "shut up" instead of be censored! That's at least honest that your intent is to censor. ... But you seem oblivious to the logic of what you just wrote, pretty typical here.Be careful to not give personal details: only targets fanboy ad hom. (22 of 195)

I don't censor. The community has said that your comments are garbage, so they get hidden. However, you can access them by a simple click of the mouse. If they were censored, you wouldn't be able to read them.

IMHO, the whole problem with copyright and patent law is the concept of them being property that can be bought and sold. Copyright should remain with the original author, and patents should remain with the inventor. They can be licensed or assigned, but never sold. In the case of copyright, it should last the life of the author and no more. When he dies, so does the copyright.

Patents should revert to the original 17 years, or less. In today's technological environment, ten years is forever.

In all cases, fair use, and derivative works must be protected. I don't know what these idiots are thinking, but most of the great novels and plays would not exist if the prior art didn't exist. Most works of fiction can trace their story line roots back to ancient Greece and Rome. There really is little new under the sun..

Re:

I mostly agree, except setting copyright to the life of the author. That is just a horrible idea for very obvious reasons. Copyright simply should be set to a fixed term, the original 14 year term is long enough for almost everything. And if renewals are allowed, it MUST require a proper registration that can be easily used to match the work to the creator.

Actually, I think the idea of an automatic copyright is unsustainable. We need to reinstate some form of registration, or at the very least require documentation of the author and year of creation for any copyright to apply. As it is now, orphan works are effectively bound to some unknown author for at least a century. That's beyond ridiculous!

Re: Re:

A fixed term is not a very reasonable measure since it easily leads to confusion about what works of an author is public domain and what is under copyright. Making that distinction is even harder are situations where there are several versions of the same work or untitled/same name works. Life + 20 years has always seemed like the most reasonable. 20 years is enough to avoid speculation in the life-regard but not as unpalatable as 50, 70 or 100 years. And yeah, some registration would absolutely be a huge help if not necessary.

Recursing censorship. -- Now even linked to! They just can't STAND for any dissent to be seen.

Listen, kids. My comments are my comments, and if you can't just skip over them soon as see the name, WHEW, that says much about Techdirt fanboys.This comment has been flagged by the community. Click here to show it

identiconout_of_the_blue, Feb 4th, 2014 @ 11:53am

Techdirt kids (or just Mike hisself, we can't tell) censoring again.Not that I care: illlustrates the tiny little minds here at Techdirt can't stand dissent; it's just that this time was trying out Windows crap and happened to notice.

Yet they can't keep from commenting at me.

Anyhoo, here repeated is what the kids can't bear:

This comment has been flagged by the community. Click here to show it

identiconout_of_the_blue, Feb 4th, 2014 @ 9:24am

Oh, this is boilerplate! Just drop in ANY system or invention:Television, "once conceived as a way to stimulate and enable science and the arts, has degenerated into a way to frustrate, derange and debilitate knowledge exchange."

What's needed is to take power away from known bad actors, push back The Rich and corporations in this as in all other areas.If you advocate taking copyright away from Disney after its long abuse and extension, then FINE! -- But don't at same time empower today's mega-corporations to steal creative works from the poor. Those are not similar cases. Doing away with ALL copyright is even more criminal than the current mess. -- Make a means test for copyright, prohibit it entirely to corporations, and prevent them from raiding the public domain. (115 of 195)Mike frequently runs items on "copyright abuse" intended to STIFLE expression knowing full well that his fanboys then consider all copyright bad and use those bad acts to justify their own STEALING of content. As Mike never runs items condemning STEALING, it's difficult to see how he "supports copyright". -- Mike sets up a false alternative: in fact, BOTH STIFLING AND STEALING ARE BAD. (151 of 195)

Response to: monkyyy on Feb 4th, 2014 @ 8:59pm

YES. I'm so tired of people getting this wrong. Copyright very obviously and certainly originated purely as a method of state censorship. Monarchial censorship, to be precise. It soon took on a role in supplementing the royal purse, especially in a time when parliaments were beginning to control general state funds. Much later still, the large publishers were influential in remodeling it to their advantage. But it started as censorship.

The avoidance of this indisputable historical fact is one of the key tools used to combat a more general, accurate understanding of copyright. It is an outrage that even people of good intent who would like to reduce the restrictions of the copyright system will invariably parrot the lie that copyright originated as a technique to bring about a social good. The simple rectification of this one ahistoricism would immensely improve the debate -- it would force proponents of copyright to specify at what time copyright stopped being a bane, and sensible people could then readily ask about that time, "Wait, what exactly happened? And who was pushing for what?"